FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
L. Calcagni, III, with whom Larry J. Ritchie was on brief,
Benjamin M. Block, Assistant U.S. Attorney, with whom Halsey
B. Frank, U.S. Attorney, and Julia M. Lipez, Assistant U.S.
Attorney, were on brief, for appellee.
Kayatta, Stahl, and Barron, Circuit Judges.
a two-day jury trial, Defendant Daniel Colby, Jr. was
convicted of a single count of possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g)(1).
In calculating Colby's sentence, the district court
applied a two-level enhancement for possession of a stolen
gun, a four-level enhancement for using a gun in connection
with another felony, and a two-level enhancement for
obstructing justice by committing perjury at trial, which
resulted in a guideline range of 84 to 105 months. The
district court sentenced Colby to 95 months in prison. On
appeal, Colby challenges the district court's application
of these three enhancements. After careful consideration, we
March 2015, Colby was living in a camper in Wiscasset, Maine
on property owned by his father. Forrest J. Smith was a
friend of Colby's father who lived nearby on Mountain
Road in Woolwich, Maine. Smith had occasionally worked for
Colby's father prior to Colby taking up residence on his
father's land. A few days before March 17, 2015, Smith
was walking home from Colby's father's house when he
encountered Colby on the road. Colby threw an M-80
firecracker at Smith and said "if you turn around right
now I'll shoot ya." Smith continued walking back to
March 17, 2015, at approximately 3:00 PM, Smith heard someone
knocking on the door to his trailer claiming to be from the
power company. According to Smith's later testimony,
Colby burst into the trailer, breaking the lock on the door.
In response, Smith told Colby that he had called the cops
about the firecracker incident. Colby stuck a gun in
Smith's face and said "I ought to shoot you right
now for calling the f-ing cops on me." Smith told Colby
that he should leave, and Colby left the trailer still
carrying the gun. Shortly thereafter, Smith called the police
and reported that Colby had threatened him with a gun. Smith
later described the gun as having "a short barrel"
with "a brown, wooden handle."
Rogers, who also lived on Mountain Road, testified at trial
to the following. On March 17, 2015, he saw Colby walking up
the road towards Smith's trailer at around 3:00 PM and,
thirty to forty minutes later, he heard someone in his
driveway trying to open the door to his truck. Looking over,
Rogers saw Colby standing by his truck. According to Rogers,
when he asked Colby what he was doing, Colby mumbled and
started "pulling something from his sweatshirt
pocket." Rogers could not see exactly what the object in
Colby's pocket was, but he did see that it had a handle.
As Colby walked towards Rogers, Rogers' dog ran at Colby.
Colby took off running across the road, through a ditch, and
into the woods.
days earlier, on March 14, 2015, Colby had visited Gregory
Doray at his mother Stacey Doray's house. Jyllian York,
Gregory's sister who was nine months pregnant and on
bedrest at the time, also lived with Stacey. At some point
that day, Jyllian took Stacey's gun from Stacey's
bedroom closet and hid it in her own bedroom closet.
According to Jyllian's later testimony, she took the gun
to give it to Gregory because she thought Gregory was in
trouble with "bad people" and might need it. Colby,
Gregory, and Gregory's girlfriend all ended up sleeping
in the living room at Stacey's house that night.
next morning, on March 15, 2015, Jyllian's boyfriend Cody
Wyman discovered that the gun was missing from Jyllian's
closet. Jyllian was scared that her mother would find out
that she had taken the gun and did not, at that point, tell
her mother that the gun was missing. After searching her room
for about two hours, Jyllian asked everyone who had spent the
night, including Colby, if they had the gun or knew where it
was. No one would admit they had it.
evening of March 17, 2015, Jyllian texted and called Colby to
ask him again if he had the gun or knew where it was.
According to Jyllian, Colby told her that he had taken the
gun and left it in a snowbank in the woods near Mountain
Road. Jyllian and Wyman went out that night to look for the
gun in the woods. In a series of text messages and phone
calls, Colby tried to explain where he had put the gun,
telling them that it was "stashed in snow . . . [a]t the
end of the tracks." When Jyllian and Wyman still could
not find the gun, Colby texted that he would "run in the
woods with Cody and get it" in the morning.
next day, Jyllian and her younger sister returned to the
woods to look for the gun. While they were searching, Officer
James Read of the Wiscasset Police Department, who was out on
patrol, saw their car parked on the side of the road and
stopped. When Officer Read asked them what they were doing,
Jyllian told him they were looking for a gun. At that point,
the police took over the search for the ...